Tom Goldstein on Life and the New Supreme Court

BY JONATHAN COHEN

Tom Goldstein.

The American Constitution Society hosted Thomas Goldstein at HLS this past Wednesday. Goldstein, the Head of Supreme Court Litigation for Akin, Gump, Strauss, Hauer & Feld and a lecturer at HLS and Stanford Law School, spoke about his path to prominence, recent Supreme Court jurisprudence, and his predictions for the Court going forward.

Goldstein’s first piece of advice for the roomful of aspiring lawyers was that they can become involved in interesting projects by volunteering their time. Goldstein told how, by agreeing to work for free, he had landed an internship with Nina Totenberg, the legal affairs correspondent at National Public Radio. He returned to the same job for his 2L summer, and confessed that he “fell in love with the Supreme Court” during these internships. He explained how he later used this insight to build his Supreme Court practice – he would identify interesting cases and take them on a pro bono basis.

Goldstein also encouraged students to find a niche for themselves. He explained how he moved from being an unknown to being cited in the press as “Supreme Court commentator, Tom Goldstein.” Rather than building a reputation as an expert and soliciting the press on the strength of that reputation, Goldstein began tabulating statistical data on Supreme Court Justices’ voting patterns and sending that data to the press months before the information was otherwise available. When reporters cited to his data, they couldn’t just list the source as “some guy named Tom,” so they christened him “Supreme Court commentator, Tom Goldstein.”

Goldstein then moved to the topic of Supreme Court jurisprudence. He pointed out that Justice O’Connor’s departure from the Court almost certainly changed the outcomes of both Hudson v. Michigan and Garcetti v. Ceballos. In Hudson, the Court reduced the scope of the “knock and announce” requirement, while, in Garcetti, it restricted the protection that employees enjoy from retaliation by their supervisors for statements they make during the course of employment Each of these cases was first argued with Justice O’Connor on the court and reargued once Justice Alito joined the bench.

By analyzing the allocation of majority opinions to the Justices, Goldstein was able to conclude that initially, in all likelihood, Justice Breyer was slated to write for the majority in Hudson, and Justice Souter was set to write for the majority in Garcetti. After the cases were reargued in front of Justice Alito, the Court decided each by a 5-4 margin, with Justice Scalia authoring the majority opinion in Hudson, and Justice Kennedy doing so for Garcetti. Justice Alito was a member of the majority in each case, while Justices Breyer and Souter authored dissenting opinions in Hudson and Garcetti, respectively.

Asked to give his take on Supreme Court jurisprudence regarding Guantanamo, Goldstein cited Hamdan v. Rumsfeld as standing for the proposition that “you can not give the finger to the Supreme Court.” In Goldstein’s view, the Bush Administration had pushed very hard against the Supreme Court and the Court had pushed back. Goldstein said that, going forward, we should expect to see both a big fight over the suspension of habeas corpus and litigation on the NSA surveillance program.

Asked whether the Supreme Court would use the upcoming partial-birth abortion case to overrule Roe v. Wade, Goldstein answered in the negative. He argued that many voters see Roe as the baseline and departures from Roe as judicial activism; he saw the Court as being sensitive to this potential backlash. More specifically, Goldstein went on to predict that Roe would not be overturned because Justice Kennedy would not vote to overturn it.

Near the end of the talk, one student asked Goldstein for his view on Rumsfeld v. FAIR, in which the Court unanimously held that the Solomon Amendment did not violate objecting law schools’ First Amendment rights. Goldstein did not seem to have been surprised at the outcome of the case, stating instead that “Supreme Court advocates thought this case was nuts, and were stunned into silence when FAIR won in the Court of Appeals.”

Goldstein will be co-teaching “Supreme Court Litigation” with Professor Tribe during the winter term.

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